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Family Court Vs. Supreme Court In NY | Case Transfer & Handling Lawyer, New York CityWhat Is The Difference Between Family Court And Supreme Court In New York?

In New York State, both Supreme Court and Family Court can handle family law matters. Supreme Court takes the following types of family law cases:

  • Divorce
  • Child custody
  • Child visitation
  • Child support
  • Order of Protection issues

While Family Court can handle child support, custody, visitation, and Orders of Protection, they cannot do the divorce or division of property.

What Type Of Cases Does Each Court Handle?

Family Court is the starting point for most family law matters in New York. Suppose you have child custody and visitation issues pending in Family Court. Then you file for a divorce. In that case, you can file a motion to merge these matters into Supreme Court. The courts will generally grant your motion so you can have all your issues decided in one court (in this case, the Supreme Court).

However, suppose a case has been decided by the Family Court but one of the parties wants to appeal. In this case, the matter will be transferred to Supreme Court for review. Generally, the Supreme Court does not revisit issues that were already decided in Family Court.

If the Supreme Court finds that there is insufficient evidence or legal authority to support the Family Court’s ruling, then it can reverse the decision and/or remand the case back to Family Court for further proceedings.

When Would You Be Transferred To One Versus The Other?

You can handle child custody, visitation, and child support issues in Family Court. Once you have a final determination, you would then file for divorce. Your divorce could be uncontested at this point, as the orders of custody, visitation, and support can be added to the divorce in Supreme Court.

In addition, Family Court handles cases involving the neglect and abuse of children and juvenile delinquency cases. Family Court is the one to decide paternity, approve adoptions, and termination of parental rights cases.

Guardianship cases, generally conducted in Family Court, can also be done in Surrogate’s Court. So, most family law cases are not handled in Supreme Court because Family Court has exclusive jurisdiction over most family legal matters.

What Is The Child’s Best Interest Standard?

The Child’s Best Interest Standard in New York includes all matters involving custody and visitation. The court will consider many things when deciding the child’s best interest. But courts must perform the following before deciding a custody case:

  • Run criminal clearances on the parents and other adults living in the home to check their criminal records.
  • Run child protective clearances to verify whether the parent or any adult has any history with the Administration for Children’s Services (ACS).
  • Determine whether domestic violence, neglect, or abuse cases exist in Family Court.

For example, suppose an Order of Protection proceeding was held in Family Court or Criminal Court for someone filing for custody of children. In this case, the fact that there is an Order of Protection means that the judge must consider that information when making a custody determination.

The court considers many factors when making custody decisions:

  • Who has physical custody?
  • What are the current parenting time arrangements?
  • What is each parent’s mental health statuses?
  • What are each parent’s living situations?
  • Is either parent unfit for custody of the children?

When it’s up to the court to make decisions for your family, the judge will consider all of these factors and more to determine what is in the best interest of the child.

How Is Time Sharing Or Custody Determined In New York When A Couple Divorces Or When Parents Are Not Together?

Who has had primary physical custody of the child is a key factor for the court to examine. If who has had custody has been for an extended period, there is a presumption in favor of keeping that arrangement. The court also reviews parenting time arrangements and usually keep the basic arrangement in place unless there is a reason to change it.

During custody disputes, courts also evaluate both parents’ mental health and living conditions. Often, an expert will assess both homes to determine their suitability for a child to reside in or stay overnight. The court will also investigate any claims made by either parent regarding the other’s alleged unfitness.

Courts generally appoint a law guardian or attorney to represent the child’s interests in legal proceedings involving children. This representative will meet with the child and depending on the child’s age, adhere to the following protocol:

  • In cases where the child is under six, the attorney will typically advocate for what is deemed to be in the child’s best interest.
  • If the child is over six, then the attorney can advocate for the child’s wants. Of course, the court will always consider what the child wants, but that’s never a determinative, only a factor (and it’s more of a factor the older the child gets).
  • If the child is age 16 or 17 and states that they want to stay with one parent, the courts will generally grant that because it can be hard to keep a teenager in a home where they don’t want to live.

Suppose there is no agreement between the parents. In this situation, the court will often order a forensic evaluation. During this evaluation, the court will appoint either a psychiatrist or psychologist to interview the parties and the children and submit a report. The interviews take place over an extensive period of time, which usually last several months or more.

Before making a report, the psychiatrist or psychologist will talk to the school and medical resources as they see fit. Their report will recommend custody and visitation arrangements, but many other factors can influence the court’s decision. Since each case is different, the court will consider each case’s unique elements before deciding.

What Is A 1051A In Family Court?

A 1051A is a type of petition that can be filed in Family Court. The 1051A is used by one party to request temporary orders for custody and/or visitation, which are in effect until the case is decided by the court. Requests for temporary orders must include specific details regarding why they are necessary, such as:

  • Identifying who should have primary physical custody.
  • What parenting time should be allowed.
  • What other arrangements should be put in place.

Once the petition is submitted, both parties will receive a copy and the court will schedule a hearing where both sides can present their case. Depending on the circumstances of the case, the judge may rule on temporary orders during this initial hearing or require further investigation before deciding.

Can You Take A Custody Case To The Supreme Court?

In certain circumstances, a custody case can be taken to the Supreme Court of New York. This is generally done when parties are unable to come to an agreement or when a lower court has rendered a decision that one party believes is unfair and wants to have overturned. In order for a case to be heard in the Supreme Court, it must meet certain criteria, such as:

  • There must be a substantial constitutional issue.
  • The lower court must have been wrong in its decision.
  • The parties must have already exhausted all remedies available in the lower courts.

If these criteria are meet, then either party can file a Writ Of Certiorari to request that the Supreme Court review their case. The Supreme Court will then decide if it is willing to hear the matter and if so, will consider all of the evidence and arguments presented.

For more information on Child Custody Matters in New York, an initial consultation is your next best step. Then, get the information and legal answers you seek today by calling (718) 557-9767.


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